Due to the COVID-19 pandemic, many businesses have extended teleworking opportunities for employees. Even as businesses begin to reopen, many of these teleworking capabilities are likely to remain in place. Recently, the U.S. Department of Labor (DOL) released an opinion letter that addresses travel time for an employee who chooses to telework for part of the day and work from the office for part of the day. The DOL concluded that under the scenarios raised in the letter, the travel time was not compensable.
Under a principle of the Fair Labor Standards Act (FLSA) known as the “continuous workday rule”, all time between the first and last principal activity of the day is generally considered compensable work time. Under this doctrine, otherwise non-compensable travel that occurs after the beginning of the employee’s first principal activity, and before the end of the employee’s last principal activity, is covered under the FLSA. Meaning, travel from worksite to worksite is generally compensable while time spent commuting to and from work is generally not. However, the distinction between commute and worksite-to-worksite travel becomes more complicated when considering employees who spend some of their time teleworking.
In the December 31, 2020 opinion letter, the DOL addresses a number of scenarios in which an employee works from home for part of the day and works in the office for the remainder of the day, with time spent performing certain personal tasks in between. (FLSA2020-19.) For example, in the first scenario, an employee works in the office until 1 pm, leaves to go to her child’s parent teacher conference, and works from home for the remainder of the day. In the next scenario, the employee works from home in the morning, attends a doctor’s appointment, and then works from the office the rest of the day.
The DOL concluded that the travel time was not compensable because the employee was either off-duty while traveling or engaged in normal commuting. They reasoned that the travel time was not compensable under the continuous workday doctrine because the employee was not required to travel from worksite to worksite as a part of her job. Rather, she was “traveling of her own volition for her own purposes during off-duty time.” When an employee is completely relieved of any duties such that she can use her time effectively for her own purposes, that time is not compensable. Because the employee arranged her workday to be divided into a block worked at home and a block worked at the office, separated by a block reserved for her own purposes, the reserved time was not compensable even if the employee used some of that time to drive to the office.
In coming to this conclusion, the DOL relied on a number of court decisions analyzing situations in which employees chose to perform various tasks at home before or after their commute. These decisions relied on the principle that even if the employee chose to do some preparatory or administrative work at home, they were able to schedule their time and could technically wait until they were on-duty to perform these tasks. The DOL quoted the court in Garcia v. Crossmark stating, “It simply cannot be the case that an employee is empowered unilaterally to convert her commute into compensable time merely by deciding to perform her daily routine in a particular manner.” (157 F.Supp.3d (D.N.M. 2015) 1046, 1049-50.)
Notably, the opinion letter only addresses situations in which the employee chooses or requests to work from home before or after performing a personal errand on uncompensated time. Thus, the analysis will be different for employees who are ordered by their employer to come into the office in the middle of a telework day or ordered to work from home after coming into the office.
